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Constitutional Law II
Wayne State University Law School
Sedler, Robert A.

Constitutional Law II – Sedler – Fall 2017
Ch. 9: Equal Protection
14th Amend. – No state shall deny to any person w/in its jurisdiction the EP of the laws.
The reason was to address racial discrimination, Slaughterhouse cases [1331] Contrast to 15th Amend., which addresses voting
EPC is universal
Benefit to some group&not others= discrimination
The 14th amend by its lang doesn’t apply to the gov. but the ct in Bolling v. Sharpe held the DP Clause of 5th Amend incorporates EP norms binding on fed. Gov. [1332] In applying EP norms to the fed gov., the ct’s patterns of decisions hasn’t been consistent [1332]—but the ct. has insisted that approaches under 5th are same as under 14th.
DPC of 5th amend: “No person shall … be deprived of life, liberty, or prop., w/o DP of law …”
Davis v. Board of Education:
This was 1st case Sedler was on
what D said: they don’t have right to attend sch.s in Charleston, so no EP violation
what P responded: treating white&black students differently, board treated diff b/c they segregated
why didn’t it matter that they had no right to attend in 1st place? The right to EP is an independent right, whenever gov acts, it has to act in accordance w/ EP of the laws.
Once it allowed them to attend, the EPC kicked in,&so they couldn’t discriminate on based on race
E.g. if gov provides benefits, then it discriminates based on gender, then it violates EP. If it didn’t provide benefits, then no issue.
1. Traditional Approach [1332]  
The EP clause is applied to legislative classifications.  If the legislature exempts some groups from the burdens of regulation (or provides a benefit to some ppl&not others), then there will be a difference in classification btwn the favored group&the disfavored group.*
The 1st step is to figure out who is in the favored group&who is in the disfavored group. 
The favored group is either not subject to the burdens of a regulatory law or gets the benefit that the law provides.
The disfavored group is subject to the burden of reg. or doesn’t get the benefit that the law is designed to provide.***
The disfavored group has a potential EP challenge.****
The Q is whether the legislature is improperly discrimination against 1 group in violation of the EP clause.
The ct. takes a pretty deferential approach b/c classifications are political trade offs.***
3 burdens of proof the Ct.s will apply- see defs above
Strict scrutiny
Intermediate scrutiny
Rational basis
Classifications on the basis of identifiable group membership*
the groups exist independently of the classification.  i.e. race, gender, sexual orientation, age, resident status, etc.  The Ct. has developed separate doc.s  4 each group.***
sections 2-4 classifications^
discrete doc.s  4 each
General Classifications*&Ordinary Rights
2 tier standard of review
Makes a diff whether dealing w/ an ordinary right or a fundamental right
This tracts DP analysis in Con law 1:
 4 ordinary=standard is rational basis
 4 fundamental rights =standard is compelling gov interest (strict)
Sedler’s 3-step approach to EP  4 general classifications*** (not identifiable groups):***** same  4 whether dealing w/ rational basis or fundamental rights
Identify the favored & disfavored groups.*
Favored group is either not subject to burdens of a regulatory law or gets benefit that law provides.
Disfavored group is subject to burden of reg. or doesn’t get benefit that law is designed to provide. 
E.g. Railway Express Agency v. New York [1333]- reg. prohibited advertisements on the sides of trucks except 4 trucks that advertise their own biz.
Favored group- businesses that own their own trucks&have ads on them; business delivery vehicles that were exempt from sign reg- i.e. could carry their name
New Orleans v. Dukes – 2 vendors exempt from reg.
Disfavored group- those who rent the space on trucks 4 advertising= they were banned
New Orleans v. Dukes – All other pushcarts in French Quarter
Suppose the law doesn’t contain express classification- they can ID favored&disfavored group
Marital rape exception*- a husband can’t be guilty of the forcible rape of his wife.
Favored group= husbands
Or, all other people raped
Disfavored group= other rapists
Or, women raped
This makes a distinction w/in a group!
E.g. race tracks case, …….
Are the favored & disfavored groups similarly situated w/ respect to the purpose of the underlying legislation?
When the law implicates an ordinary (not fundamental) right, the ct. may hypothesize the purpose  4 the legislation & there is no req. the ct. show the hypothesized purpose was actual purpose.**
Railway Express-* The purpose of the legislation is to stop distracting other drivers.  The ct. might see that 1 is passively distracting while the other doesn’t have to be distracting, there4 they’re not similarly situated.  If the Ct. finds that they’re both distracting, then they’re similarly situated.***
E.g. rapist ex- both sets are women, & both sets are rapists, they’re similarly situated w/ respect to underlying reasoning, which is rape.
If ct. finds NOT similarly situated, then challenge would fail!
Usually relates to standard of review
Is there an independent justification  4 the classification?
The legislature has to articulate a purpose & ct. may look at how well that classification accomplishes that purpose (the ends/means fit). ******
A classification is overinclusive when it goes further than it needs to achieve the purpose.  However, using rational basis, the Ct. allows a lot of under&ovr inclusiveness.***
Undue burden on fundamental right= no hypothesizing purposes, must look to actual purposes,&the classification must be precisely tailored to that purpose
See this in cases
E.g. Marital rape exception*
An independent justification of this classification (btwn. women raped by their husbands&women raped by other men) is that it’s harder to prove that a husband raped.
If he had been a stranger, then that wouldn’t be ok, b/c
Nothing to do w/ human integrity is nonetheless violated by the rule
Argument of the gov.  4 this exception:
State is trying to avoid interference in marriage.
We don’t want the wife to testify,&then later say nothing happened=interfering
Counter to above arg:
The risk to married women outweighs risk to gov intrusion
Here is violent crime, the harm is the same regardless of relationship—after violent crime committed, there is no hope of reconciliation
The justification isn’t suff to justify the exception
There is a plausible justification
Should the ct req that the gov’s reason be articulated?
Generally, a classification will be held under rational basis (ordinary rights) when it’s arbitrary or objectively unreasonable.* Remember that fundamental rights have a higher standard- the Gov. must have a compelling interest.*
Fundamental rights- marriage/family, reproductive freedom, right to vote, right to travel interstate.***
If classification does well= objectively reasonable
Nebia (from con law 1)
Facts: Milk min prices
Purpose: if we impose min prices at retail= result in processors paying more money to farmers
But, is that really the case??
See this in rational basis, will also see in EP
Railway Express Agency v. New York [1333]* (1949)
Facts: The Appellant operates abt. 1,900 trucks in NYC&sells space on the exterior of the trucks  4 advertising. The advertising is  4 the most part unconnected w/ its own business. Appellant was fined  4 violating a state statute, which prohibits ADs on the side of vehicles, except when the advertising is connected to the owner of the vehicles business. The statutes’ purpose was to protect the safety of pedestrians & other vehicle drivers by eliminating distractions on streets. The judgment of conviction was upheld in the Ct. of Special Sessions as well as the Ct. of Appeals.
The Appellant arg.d that this

s—the leg. May select one phase of one field&apply a remedy there, neglecting the others.
There is an exception  4 “ready to wear” glasses
Who would want the exception? The drug stores
New York City Transit Auth. v. Beazer [1340]*
Facts: Transit authority wanted to be drug free, they included methadone users; LC found not like other drug users. NYC Transit Authority rule barred employment of narcotics users. The Transit Authority applied the rule to all persons taking methadone – a drug widely used in the treatment of heroine addiction.*
Rule: State legislation doesn’t violate the EPC of the US Const. merely b/c the classifications that it makes are imperfect.*
Holding: SC found under rational basis the transit authority could conclude there was an issue w/ methadone; doesn’t violate EP
Upheld the exclusion of all methadone users from any Transit Authority employment
The Transit Authority’s rule serves the general objectives of safety&efficiency. The rule isn’t directed against any class of persons characterized by some unpopular trait. There4, it doesn’t create the likelihood of bias on the part of the ruling majority.
Dissent: Transit Authority uses a rule that classifies fully employable methadone users as dispositively different from the general population w/o any justification. W/ the irrationality&invidiousness of the rule uncovered, it must fall as it violates the EPC of the Const..
The ct is willing to ACCEPT the leg. classification
They have to draw the line somewhere
Generalizations abt. groups
Rational basis standard of review, even applied deferentially, tolerates a considerable degree of over&under inclusiveness b/c leg is entitled to proceed on basis of generalizations&broad assumptions of ppl coming w/in classification
When higher standard (standard used  4 gender class) = leg. can’t proceed on gen assumptions
E.g. married, husband earns more than wife= they can’t allow that generalization, even though that is the case in most households
Where rational basis involved, ct tolerated broad generalizations
Deference: humble submission&respect.
Armour v. Indianapolis [1342]*
Facts: under the initial financing scheme, prop. owners could pay at once or installments  4 sewage; then shortly after, when some had paid, the city switched to new financing system&forgave some debts of those paying on installment plan, it refused to provide refunds to those who paid upfront= ppl paid diff amts  4 sewage service.
Holding: rejected an EP challenge to a city’s policy  4 apportioning the costs of sewer construction.
Considerations of administrative convenience provided rational basis  4 city’s policy of forgiving unpaid&not refunding others. After switching, to continue unpaid debt collection could’ve  proved complex&expensive,&to have added refunds  4 forgiveness would have produced the administrative costs of processing refunds  4 multitude of projects
Ct declined to find city had another rational basis in avoiding the fiscal challenge of paying refunds
Dissent: we have never b4 held that administrative burdens justify grossly disparate tax treatment of those the state has provided should be treated alike.